1 See, e.g., FLA. STAT. ANN. § 561.545 (West Supp. 2000). The Florida law states:
Any person in the business of selling alcoholic beverages who knowingly and intentionally ships, or causes to be shipped, any alcoholic beverage from an out-of-state location directly to any person in this state who does not hold a valid manufacturer’s or wholesaler’s license or exporter’s registration . . . or who is not a state-bonded warehouse is in violation of this statute.
Id. (1). See also, e.g., N.C. Gen. Stat. § 18B-102.1 (1999); Tex. Alco. Bev. Code Ann. § 107.07 (West Supp. 2000).
2 See, e.g., FLA. STAT. ANN. § 561.545; see also Fla. Stat. Ann. § 562.15 (West 1987) (making it unlawful to possess wine that has been shipped into the state in violation of the direct shipment law).
3 See, e.g., Fla. Stat. Ann. § 516.545. See also infra notes 50–55 and accompanying text.
4 For a list of the thirty states with statutes expressly prohibiting direct shipments of wine, see infra note 53. For a list of the ten states with limited personal importation statutes, see infra note 54.
5 See Twenty-first Amendment Enforcement Act, S. 577, 106th Cong. (1999) (substantially similar to H.R. 2031, 106th Cong. (1999)); see also infra notes 69–81 and accompanying text.
6 For a complete discussion of the dormant Commerce Clause, see Laurence H. Tribe, American Constitutional Law §§ 6–1 to –2 (3rd ed. 2000). See also 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 11.1–.11 (2d ed. 1992); infra notes 82–118 and accompanying text.
7 See Tribe, supra note 6, §§ 6–1 to –2; see also City of Philadelphia v. New Jersey, 437 U.S. 617, 626–29 (1978) (striking down New Jersey ban on the importation of out-of-state waste).
8 See 145 Cong. Rec. S2509 (daily ed. March 10, 1999) (Introductory Remarks on Measure, by Sen. Hatch); C. Boyden Gray, Letters to the Editor: The Case Against Mail-Order Booze, Wall St. J., Sept. 8, 1999, at A27.
9 See infra notes 197–264 and accompanying text.
10 See infra notes 15–81 and accompanying text.
11 See infra notes 82–118 and accompanying text.
12 See infra notes 119–96 and accompanying text.
13 See infra notes 197–242 and accompanying text.
14 See infra notes 243–56 and accompanying text.
15 See Richard McGowan, Government Regulation of the Alcohol Industry 4–5, 113 (1997). McGowan notes that as a result of the Twenty-first Amendment there are more than fifty-two different agencies that control and tax alcohol in the United States. This includes: the federal government (to a limited extent), the fifty states, the District of Columbia and a myriad of local and municipal agencies. See id.
16 See U.S. Const. amend. XXI, § 2. The Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment and ended fourteen years of national Prohibition. See Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity 1880–1920, at 26–27 (1997).
17 See McGowan, supra note 15, at 4–5.
18 See, e.g., Fla. Stat. Ann. § 561.545 (West Supp. 2000). For a more in-depth discussion and examples of direct shipment laws see infra notes 50–55 and accompanying text.
19 See S. 577, 106th Cong. (1999) (substantially similar to H.R. 2031, 106th Cong. (1999)). For a more detailed discussion of the Enforcement Act, see infra notes 69–81 and accompanying text.
20 Indeed, the gloss of history is probably the only thing that could make sense of the unusual way in which alcohol is regulated as compared to other articles of commerce. See Note, Economic Localism in State Alcohol Beverage Laws—Experience Under the Twenty-first Amendment, 72 Harv. L. Rev. 1145, 1146 (1959). In fact, one commentor has pointed out that among the usual suspects of firearms, narcotics, pharmaceuticals or pornography, alcohol is the only substance that was ever expressly prohibited by the Constitution. See Wine Institute, Some Background on Anti-Direct Shipping Laws (visited Nov. 6, 1999) <http://www.wineinstitute.org/shipwine/ backgrounder/backgrounder.html>.
21 As the Fifth Circuit Court of Appeals once noted: “Since the founding of our Republic, power over regulation of liquor has ebbed and flowed between the federal government and the states.” Castelwood Int’l Corp. v. Simon, 596 F.2d 638, 641 (5th Cir. 1979).
22 See, e.g., 46 U.S. (5 How.) 504, 579, 627 (1847). The three cases decided in 1847 as the License Cases all involved Commerce Clause challenges to state liquor regulations requiring the licensing of anyone selling intoxicating beverages brought into the state from without. Although the decision consisted of conflicting opinions by six different Justices, the gist of the holding sustained the constitutionality of state laws absent a conflicting act of Congress. See id.
23 See 135 U.S. 100, 123–25 (1890). Leisy involved a challenge by Gus Leisy and Company, the largest brewer in Peoria and a major player in the original package trade, against an Iowa prohibition law. The Leisy Company argued that prohibition in Keokuk, Iowa, interfered with Congress’ power over interstate commerce by prohibiting the sale of imported alcohol. See Hamm, supra note 16, at 66–68. The Supreme Court agreed. See Leisy, 135 U.S. at 125. The practical affect of Leisy was to reinstate the “original package” test from Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), by preventing states from interfering with commerce in alcohol until the liquor had been “mingled in the common mass of property” of the state through purchase. See Leisy, 135 U.S. at 124–25; Hamm, supra note 16, at 68–69.
24 See Leisy, 135 U.S. at 123–25.
25 See Wilson Act, ch. 728, 26 Stat. 313 (Aug. 8, 1890) (current version at 27 U.S.C. § 121 (1994)). The text of the Wilson Act states:
All . . . intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory . . . , and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.
Id.
26 See In re Rahrer, 140 U.S. 545, 264–65 (1891).
27 See Vance v. W.A. Vandercook Co., 170 U.S. 424, 455–56 (1898) (holding that the Wilson Act could not authorize a state to interfere with the interstate shipment of liquor for personal use); Rhodes v. Iowa, 170 U.S. 412, 421–23, 426 (1898) (interpreting the Wilson Act narrowly so that a state’s power to regulate did not vest until the alcohol’s arrival at its final point of destination). One author has noted that in the wake of Rhodes, “[m]ail-order booze . . . flourished.” Sidney J. Spaeth, Note, The Twenty-first Amendment and State Control over Intoxicating Liquor: Accommodating the Federal Interest, 79 Cal. L. Rev. 161, 173 (1991).
28 See Vance, 170 U.S. at 452.
29 See id.; Hamm, supra note 16, at 178–79. During the period that followed Rhodes and Vance, the “right” of citizens to import alcohol for personal use became a front for large scale liquor distributors whose flyers and circulars stocked the mailboxes of the dry areas. One such company, located in Kansas City, Missouri (Missouri was wet while Kansas was dry), advertised that they could “supply the wants of a thirsty Kansas.” See id. at 179.
30 See id. at 212–17.
31 Webb-Kenyon Act, ch. 90, 37 Stat. 699 (1913) (current version at 27 U.S.C. § 122 (1994)).
32 See Hamm, supra note 16, at 218. Hamm points out that William Howard Taft was a lame-duck president with no political future and hence nothing to fear from the powerful supporters of the prohibition movement. Taft argued that although the Supreme Court had not expressly ruled on the subject, as the president he had the duty to exercise principles of “proper constitutional construction.” Id. (quoting Cong. Rec., 62d Cong., 3d Sess. 2903–11 (statement of President Taft)). Incidentally, Taft who sat as Chief Justice of the Supreme Court from 1921–1930 would never get the chance to rule on the interstate character of alcohol under the Constitution on account of the Eighteenth Amendment.
33 See id. at 219.
34 See Clark Distilling Co. v. Western Maryland Ry., 242 U.S. 311, 330 (1915). Hamm mentions that the decision in Clark was interpreted differently by the “wets” and the “drys.” The drys saw the decision as a sort of band-aide, a method that only postponed the national prohibition alcohol by lessening its need. The wets, however, were terrified that Clark signaled the beginning of the end, fearing that national prohibition loomed ominously in the horizon. See Hamm, supra note 16, at 225.
35 See U.S. Const. amend. XVIII, repealed by U.S. Const. amend. XXI. The Eighteenth Amendment, which brought thirteen years of prohibition to the United States, is almost universally seen as an embarrassment to the American Constitution in general and to the amendment process in particular. One commentor has alluded to the Eighteenth Amendment as an “exercise in Constitutional frivolity,” emphasizing that regardless of the value of the goals of prohibition, they would have been better accomplished through federal legislation. See George Anastaplo, The Amendments to the Constitution: a Commentary 199, 206 (1995). Furthermore, Laurence Tribe has pointed out that “[t]he Eighteenth Amendment . . . is nearly everybody’s prime example of a constitutionally dumb idea. Dean John Hart Ely, for instance, uses it as Exhibit A in his case against constitutionalizing social or economic policies.” See Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 Const. Comment. 217, 217 (1995) (citing John Hart Ely, Democracy and Distrust 99–100 (Harvard U. Press, 1980)).
36 See Volstead Act, ch. 85, tit. I, 41 Stat. 305 (1919) (also known as the National Prohibition Act), amended in part and repealed in part by Liquor Law Repeal and Enforcement Act, ch. 740, 49 Stat. 872 (1935).
37 See supra note 36.
38 See Hamm, supra note 16, at 271.
39 See id.
40 See id.
41 U.S. Const. amend. XXI. §§ 1, 2; accord Webb-Kenyon Act, ch. 90, 37 Stat. 699 (1913) (current version at 27 U.S.C. § 122 (1994)). The Twenty-first Amendment also set a seven-year time limit on ratification. See U.S. Const. amend. XXI. § 3. For a discussion of the Supreme Court’s analysis and interpretation of § 2, see infra notes 132–43 and accompanying text.
42 See Hamm, supra note 16, at 271. A complete discussion of the interpretation and history of § 2 will follow in the survey of Twenty-first Amendment jurisprudence infra notes 119–96 and accompanying text. At this stage it should suffice to say that the Amendment was originally interpreted at giving the states broad authority to regulate the subject of alcohol. See infra notes 132–38 and accompanying text.
43 See McGowan, supra note 15, at 52–54; Note, supra note 20, at 1148.
44 See Vijay Shanker, Note, Alcohol Direct Shipment Laws, the Commerce Clause, and the Twenty-first Amendment, 85 Va. L. Rev. 353, 355–56 (1999).
45 See id. at 356.
46 See Spaeth, supra note 27, at 166 (discussing the nineteenth century “saloon image” problems associated with local regulation of alcohol).
47 See McGowan, supra note 15, at 101–02; Chris Knap, Wine Wars, Orange County Reg., Oct. 23, 1997, at C1, available in 1997 WL 14880381. Although prohibitions on vertical integration have generally been removed for distilled liquor and beer, they still exist for wine which has a considerably smaller market share and hence minimum political influence. See McGowan, supra note 15, at 101–02. Incidentally, “Tied-House Laws” were named for the distiller-owned taverns that would offer free sandwiches in order to entice customers into drinking during the middle of the day. See Knap, supra, at C1.
48 See McGowan, supra note 15, at 51–52, 101–02. Examples of states that utilize this system include: Alabama, Idaho, Maine, Michigan, Mississippi, Montana, New Hampshire, Ohio, Oregon, Pennsylvania, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming. See id. at 52.
49 See id. at 102; Shanker, supra note 44, at 355–56. For the Supreme Court’s description of the three-tier system, see North Dakota v. United States, 495 U.S. 423, 428 (1990). Supporters of the three-tier system claimed that it minimized the involvement of organized crime and decreased alcohol abuse. See Shanker, supra note 44, at 356. Furthermore, proponents of the three-tier system argued that it would be easier for the states to collect taxes on the alcohol sold within their borders. See id.
50 See Shanker, supra note 44, at 356.
51 See id. at 355 n.8.
52 See id. at 356–57. Determining which category any given state would fit into by examining the applicable statutes can be difficult, because the statutes themselves can be deceptive. For example, although Massachusetts claims to allow direct shipment so long as a special permit is obtained from the Alcoholic Beverage Control Commission, no such permits are being issued. See Wine Institute, Direct Shipment Laws by State for Wineries: Analysis of State Laws (visited Nov. 6, 1999) <http://www.wineinstitute.org/shipwine/analysis/state_analysis.html> (citing M.G.L. § 2A, ¶ 7101).
53 See Shanker, supra note 44, at 356–57. A good example of an express prohibition statute is from Texas:
A Texas resident may import for his own personal use not more than three gallons of wine . . . . A person importing wine or liquor under this subsection must personally accompany the wine or liquor as it enters the state. A person may not avail himself of the exceptions set forth in this subsection more than once every thirty days.
Tex. Alco. Bev. Code Ann. § 107.07(a) (West 1995).
There are thirty states that currently prohibit direct shipments of wine, these include: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and Wyoming. See Wine Institute, supra note 52.
54 See Shanker, supra note 44, at 356–57. A good example of a limited personal importation statute is from New Hampshire:
A direct shipper may ship directly to New Hampshire consumers over 21 years of age or licensees in packages clearly marked “Alcoholic Beverages, adult signature (over 21 years of age) required.” All shipments from direct shippers into the state shall be made by a licensed carrier and such carriers are required to obtain an adult signature. Direct shippers or carriers shall not ship into areas of the state where alcohol beverages may not be lawfully sold . . . . No direct shipper may ship more than 60 individual containers of not more than one liter each of liquor and wine to any one licensee in New Hampshire or to any consumer or consumer or consumer’s address in any calendar year.
N.H. Rev. Stat. Ann. § 178:14-a (Supp. 1999).
There are ten states that currently allow the limited personal importation of wine, including: Alaska (reasonable amount); Connecticut (5 Gal./ 60 days, consumer must obtain permit); Louisiana (60 bottles/ year, taxes must be paid, permit required); Nebraska (1 case/ month, taxes must be paid, permit required); New Hampshire (60 cases/ year, taxes must be paid, license required); North Dakota (1 case/ month); Rhode Island (taxes must be paid, permit required); and the District of Columbia. See Wine Institute, supra note 52.
55 See Shanker, supra note 44, at 356–57. A good example of a reciprocity statute is from New Mexico:
Any individual or licensee in a state which affords New Mexico licensees or individuals an equal reciprocal shipping privilege may ship for personal use and not for resale not more than two cases of wine, each case containing no more than nine liters, per month to any individual not a minor in this state.
N.M. Stat. Ann. § 60–7A–3 (Michie 1978).
There are currently twelve states that afford one another reciprocity privileges for direct shipments of wine, including: California, Colorado, Idaho, Illinois, Iowa, Minnesota, Missouri, New Mexico, Oregon, Washington, Wisconsin and West Virginia. See Wine Institute, supra note 52.
56 See Shanker, supra note 44, at 356.
57 See McGowan, supra note 15, at 48–49. Although wine consumption in the United States has more than doubled since the 1950s, liquor sales still out-value wine over two to one (dollars sold) and beer and soft drinks over three to one. See id. at 103.
58 See id. at 49; Wine Institute, Key Facts: Bonded Winery Premises (visited Nov. 6, 1999) <http://www.wineinstitute.org/communications/statistics/bondedwinery.html>.
59 See Alex M. Freedman & John R. Emshwiller, Vintage System: Big Liquor Wholesaler Finds Change Stalking its Very Private World, Wall St. J., Oct. 4, 1999, at A1, available in 1999 WL-WSJ 24916326 (stating that the number of wholesalers has decreased 97% since 1963, and today the top five control one third of the market); Knap, supra note 47, at C1 (noting that the top wholesalers prefer to deal with high-volume products which can establish brand loyalty and repeat sales, leaving small wineries with nowhere to go); Wine Institute, supra note 58 (indicating that the twenty-five largest wineries produce over 90% of the wine in the United States).
60 See Interstate Alcohol Sales and the Twenty-first Amendment: Hearing Before the Comm. on the Judiciary United States Senate, 106th Cong. 141, at 20 (1999) [hereinafter Interstate Alcohol Sales] (statement of Mike Thompson, Representative for First Congressional District of California).
61 See, e.g., Freedman & Emshwiller, supra note 59, at A1. For an example of the result of this pressure to enforce direct shipment laws, see Bureau of Alcohol, Tobacco and Firearms, Industry Circular: Direct Shipment Sales of Alcohol Beverages (1997).
62 See 145 Cong. Rec. H6,859–60 (daily ed. Aug. 3, 1999) (letters by assorted state attorneys general, stating that they are currently without the means to adequately enforce the direct shipping laws); Gray, supra note 8, at A27 (likening the wineries who break the unenforceable laws to “a gang of outlaws standing on one side of a river knowing the sheriff on the other side can’t reach them”).
63 See H.R. Rep. No. 106–265, at 5 (1999) (citing Florida Dep’t of Bus. Regulation v. Sam’s Wines & Liquors, No. 96–3602 (Fla. Cir. Ct. Sept. 3, 1997) (order granting motion to dismiss for lack of personal jurisdiction over the defendant)). It is important to note that personal jurisdiction in state courts is controlled by the state’s own “long arm statute” which may extend as far as, but no further than, the constitutional requirements of minimum contacts. See generally International Shoe v. Washington, 326 U.S. 310 (1945), as interpreted by World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). Florida’s “long arm” statute, applicable in Sam’s Wines, did not extend as far as the Constitution permits, but only to those persons “operating, conducting, engaging in, or carrying on a business venture in this state or having an office or agency in this state.” See Fla. Stat. Ann. § 48.193 (West Supp. 2000). Thus, it is unresolved whether a state with a long arm statute with a broader swing would indeed have personal jurisdiction over a defendant winery under similar circumstances.
64 See Florida Dep’t of Bus. Regulation v. Zachy’s Wine and Liquor, Inc., 125 F.3d 1399, 1402 (11th Cir. 1997), cert. denied, 523 U.S. 1607 (1998); Wine and Spirits Wholesalers, Inc. v. Net Contents, Inc., 10 F. Supp. 2d 84, 86 (D. Mass. 1998).
65 See Tribe, supra note 35, at 219. Tribe notes that although a draft version of the Twenty-first Amendment contained an enforcement provision granting concurrent state and federal jurisdiction, the ratified version contains no such provision. See id. He also points out that the two federal laws that do purport to enforce the Twenty-first Amendment find their authority in the Commerce Clause. See id.
66 See, e.g., Zachy’s Wine & Liquor, 125 F.3d at 1402 (holding that neither the Twenty-first Amendment nor the Webb-Kenyon Act have an implied federal right of action).
67 See Net Contents, 10 F. Supp. 2d at 85–87 (holding that a Massachusetts wholesaler could not assert a claim for tortious interference with business to enjoin California-based wine shipper Virtual Vineyards from violating Massachusetts direct shipment laws).
68 See H.R. Rep. No. 106–265, at 5; Carolyn Lochhead, House to Limit Wine Sales on Internet, S.F. Chron., Aug. 3, 1999, at A1, available in 1999 WL 2692540 (stating that winemakers claim pressure from large wholesalers prompted legislation); Editorial, Wine Wars, Wall St. J., Jul. 23, 1999, at A14, available in 1999 WL-WSJ 5461687 (stating that the legislation is the result of campaigns by wholesalers and distributors aimed at attorneys general and Congress).
69 See S. 577, 106th Cong. (1999) (text substantially similar to H.R. 2031, 106th Cong. (1999)); 145 Cong. Rec. S2503 (daily ed. Mar. 10, 1999) (introducing S. 577 in Senate by Mr. Hatch (for himself and Mr. DeWine)); 145 Cong. Rec. H3857 (daily ed. Jun. 8, 1999) (introducing H.R. 2031 in House by Mr. Scarborough (for himself, Mr. Sensenbrenner, Mr. Delahunt and Mr. Cannon)).
70 See S. 577.
71 See 145 Cong. Rec. H6,887 (daily ed. Aug. 3, 1999).
72 See 145 Cong. Rec. S2509 (daily ed. March 10, 1999) (statement by Senator Hatch).
73 See id.
74 See id.
75 See 145 Cong. Rec. H6,861–62 (daily ed. Aug. 3, 1999)(statement of Representative Thompson); id. at H6,864–65 (statement of Representative Radanovich).
76 See H.R. Rep. No. 106–265, at 18 (arguing that the only evidence of minors successfully obtaining alcohol over the internet comes from the anecdotes of the Enforcement Act’s supporters). Additionally, opponents of the Enforcement Act argue that although telephone and internet wine sales have been legal in California since 1963, the State has not experienced this as an obstacle to enforcing laws against underage drinking. See id. at 18–19 & n.4 (citing a letter from Manuel R. Espinoza, Chief Deputy Director of California Dep’t of Alcoholic Beverage Control, to Representatives Mike Thompson and George Radanovich (March 3, 1999)).
77 See id. at 17.
78 See id. at 19. The proposed substitute, which was drafted by Representatives Gallegly and Lofgren, would have directly targeted the problem of underage access to alcohol by allowing state attorneys general access to federal courts solely for the purpose of enforcing state laws regarding the sale of alcohol to minors. See H.R. Rep. No. 106–265, at 19.
79 See id. at 17.
80 See infra, notes 254–56 and accompanying text.
81 See H.R. Rep. No. 106–265, at 19–21.
82 U.S. Const. art. I, § 8, cl. 3 (stating that Congress shall have the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”).
83 This principle can be traced back to Cooley v. Board of Port Wardens, where the Court held that Congress has the exclusive power to regulate all commerce that was “national” in character. See 53 U.S. (12 How.) 299, 319–20 (1851). For a more complete discussion of the origins of the dormant Commerce Clause, see generally Tribe, supra note 6, §§ 6–1 to –3.
84 See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 209 (1824) (Marshall, C.J.) (finding “great force” in the argument that the commerce power was exclusively federal and plenary).
85 This principle is known generally as “Dowling’s rule” after the professor who first articulated that which the Supreme Court had been doing since the Great Depression. In his famous article, Professor Dowling noted that “in the absence of affirmative consent a Congressional negative will be presumed in the court against state action which in its effect upon interstate commerce constitutes an unreasonable interference with national interests, the presumption being rebuttable at the pleasure of Congress.” See Noel T. Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1, 20 (1940).
86 See City of Philadelphia v. New Jersey, 437 U.S. 617, 626–29 (1978) (finding that a New Jersey ban on the importation of out-of-state waste was an impermissible burden on interstate commerce); Tribe, supra note 6, § 6–5, at 1050–51 & n.5.
87 See Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 274–76 (13th ed. 1997).
88 See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense out of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1112–13 (1986) (arguing that there are three objections to state protectionism: the “concept-of-union” objection; the “resentment/ retaliation” objection; and the “efficiency” objection); see also City of Philadelphia, 437 U.S. at 629 (discussing the evils of protectionism and the threat of state retaliation).
It may also be worth noting that as far off as the notion of balkanization seems to us today, this very real threat was partially realized under the Articles of the Confederation, and is part of what prompted the Constitutional Congress to meet in 1787. See Andrew C. McLaughlin, A Constitutional History of the United States 137–47 (1936).
89 See Regan, supra note 88, at 1114.
90 See Gunther & Sullivan, supra note 87, at 275. This idea is based on the notion that free trade is essential to the social well-being of the nation and that the interference of state regulation would hinder the production of the free market. See id. Professor Tribe refers to this interpretation of the dormant Commerce Clause as “Madisonian.” See Tribe, supra note 6, § 6–3, at 1044.
91 See Tribe, supra note 6, §6–5, at 1052; see also Gunther & Sullivan, supra note 87, at 275. The concept of representation re-enforcement is frequently associated with John Hart Ely’s process-based model of Constitutional interpretation discussed in his book, Democracy and Distrust, supra note 35, at ch. 4. Furthermore, the concept of representation-reinforcement also is referred to as a Carolene Products analysis because of Justice Stone’s famous footnote from that case. See United States v. Carolene Products Co., 304 U.S. 144, 152–53 n.4 (1938). Finally, I should mention that the concept of representation-reinforcement as a principle for judicial review harks all the way back to Chief Justice John Marshall’s decision in McCulloch v. Maryland. See 17 U.S. (4 Wheat.) 316, 428 (1819) (stating: “[i]n imposing a tax the legislature act upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation”).
92 See Tribe, supra note 6, §6–5, at 1052.
93 See generally Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425 (1982); Daniel A. Farber, State Regulation and the Dormant Commerce Clause, 3 Const. Comm. 395 (1986); Regan, supra note 88; Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 Wis. L. Rev. 125.
94 See, e.g., City of Philadelphia, 437 U.S. at 623–24. In City of Philadelphia, the Court articulated the difference in the treatment of discriminatory and non-discriminatory state laws by stating:
The opinions of the Court throughout the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtual per se rule of invalidity has been erected. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach . . . .
See id. (internal citations omitted).
95 See Eule, supra note 93, at 460–68. Although Professor Eule refers to this phenomenon as “disproportionalism” rather than discrimination, the effect is the same. See id.; see also Tushnet, supra note 93, at 133–41. Another definition of discrimination in the Commerce Clause context is: “Any disparity in the treatment of in-state and out-of-state interests—whether business, users, or products . . . even if the disparity is slight.” See Tribe, supra note 6, §6–6, at 1059–60.
96 See Gerald Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972). Indeed, Maine v. Taylor stands as the only example of a state regulation that survived strict scrutiny. See 477 U.S. 131, 151–52 (1986).
97 See Taylor, 447 U.S. at 138 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). For cases applying a more deferential standard of review—a standard of review akin to rational basis in the Equal Protection context—to uphold non-discriminatory state laws, see Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 471–72 (1981) (applying rational-basis to uphold a non-discriminatory Minnesota law that prohibited the sale of milk in disposable plastic cartons); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127–29 (1978) (applying rational-basis to uphold a non-discriminatory Maryland law that prohibited producers and refiners of petroleum products from operating retail stations in the state); but see Bibb v. Navajo Freight Lines, 359 U.S. 520, 529 (1959) (applying rational-basis to strike down a non-discriminatory Illinois law that required all transport tractor-trailers to use curved mudflaps on state highways).
98 See Taylor, 477 U.S. at 138 (quoting Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)); see also Pike, 397 U.S. at 142.
99 See City of Philadelphia, 437 U.S. at 624 (stating: “The crucial inquiry, therefore, must be directed to determining whether [the state law] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns”).
100 See Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 670 (1981) (stating that “the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack. Regulations designed for that salutary purpose nevertheless may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid under the Commerce Clause.”); see also City of Philadelphia, 437 U.S. at 625 (striking down a New Jersey ban on out-of-state garbage in spite of a claim that the law was motivated by environmental concerns); Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 352 (1977) (striking down a North Carolina apple labeling law in spite of a claim that the law was designed to promote the quality of apples and reduce consumer confusion).
101 See Taylor, 477 U.S. at 138 (stating that the burden is on the state to show that their legitimate purpose “could not be served as well by available nondiscriminatory means”); Pike, 397 U.S. at 142 (stating: “the extent of the burden that will be tolerated will of course depend on . . . whether [the local interest] could be promoted as well with a lesser impact on interstate activities”); see also City of Philadelphia, 437 U.S. at 626–27 (suggesting that the New Jersey law would have been constitutional if it had banned the processing of all garbage, and not just that which had originated from out of state).
102 See Taylor, 477 U.S. at 138.
103 Southern Pac. Co. v. Arizona, 325 U.S. 761, 769 (1945) (Stone, J.) In the revised version of his landmark article, Interstate Commerce and State Power, Professor Dowling notes that Justice Stone had a certain history regarding the issue of Congressional power to consent to a dormant Commerce Clause violation. Dowling tells a story from the days when Mr. Stone was Dean of the Columbia Law School, in which the later-to-be Justice directed Professor Dowling to “find out all you can about just how it is that Congress can enable the states to do something which the Court already has held the states could not do.” See Noel T. Dowling, Interstate Commerce and State Power—Revised Version, 47 Colum. L. Rev. 547, 552–53 & n.19 (1947). Much of Dowling’s findings on this issue were later published in a particularly relevant article: Noel T. Dowling & F. Morse Hubbard, Divesting an Article of its Interstate Character: An Examination of the Doctrine Underlying the Webb-Kenyon Act, 5 Minn. L. Rev. 100 (1921).
For a general discusssion of the doctrine of congressional consent, see Tribe, supra note 6, § 6–35, at 1242–45; and William Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma, 35 Stan. L. Rev. 387 (passim) (1983).
104 See Rahrer, 140 U.S. at 561–64; William Cohen, Congressional Power to Define State Power to Regulate Commerce: Consent and Pre-emption, in 2 Courts and Free Markets: Perspectives from the United States and Europe 523, 527 (Terrence Sandalow & Eric Stein eds. 1982).
105 See Tribe, supra note 6, § 6–35, at 1243 (stating: “The principle of [congressional consent] cannot be extended to a conclusion that Congress has limitless power to authorize state discrimination against out-of-state [interests]”); see also Gunther & Sullivan, supra note 87, at 344–49 (offering a brief survey of the differences in opinion regarding congressional consent); Dowling, supra note 103, at 556.
106 See South Cent. Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 90–91 (1984) (overruling the appeals court’s holding that Congress had consented to a discriminatory Alaskan local processing requirement by “consistently endorsing primary-manufacture requirements on timber taken from federal land”); Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 958–59 (1982) (declining to find congressional authorization for state-imposed burdens on interstate commerce regarding ground water, despite thirty-seven federal statutes that demonstrated Congress’ deference to state water law).
107 See South Cent. Timber, 467 U.S. at 91–92 (stating: “The requirement that Congress affirmatively contemplate otherwise invalid state legislation is mandated by the policies underlying the dormant Commerce Clause doctrine [and] ensures that there is . . . a collective decision and reduces significantly the risk that unrepresented interests will be adversely affected by restraints on commerce”).
108 In addition to the dormant Commerce Clause, there are two alternate means used in the past by the Court to strike down discriminatory state legislation: the Privileges and Immunities Clause of Article IV, § 2; and the Equal Protection Clause. See Geoffrey R. Stone et al., Constitutional Law 337–40 (3rd ed. 1996) (discussing the Privileges and Immunities Clause); Tribe, supra note 6, § 6–35, at 1243 (discussing the Due Process and the Privileges and Immunities Clauses). In situations where the dormant Commerce Clause has been unavailable, either because of congressional consent or the market-participation exception, the Court has applied the Privileges and Immunities Clause and the Equal Protection Clause in a way that mirrors traditional Commerce Clause analysis. See Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 882–83 (1985) (using the Equal Protection Clause to strike down a statute that discriminated against out-of-state interests but had been expressly authorized by Congress); United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 221–23 (1984) (holding that the Privileges and Immunities Clause could be used to strike down a discriminatory local-preference hiring policy, even though the dormant Commerce Clause was inapplicable because of the market participation doctrine); see also Stone et al., supra, at 338 (stating: “[i]n many ways the modern function of [the Privileges and Immunities Clause of] article IV, section 2 appears to be that of carving out an exception to the market participation exception to the [dormant] commerce clause”); William Cohen, Federalism in Equality Clothing: A Comment on Metropolitan Life Insurance Company v. Ward, 38 Stan. L. Rev. 1 (1995) (arguing that the only explicable purpose for applying Equal Protection analysis in Metropolitan Life was to strike down discriminatory state legislation that could not have been struck down under the Commerce Clause because of congressional authorization).
109 In fact, the last Supreme Court case to rely on congressional consent to uphold a discriminatory state law was in 1963, in Prudential Insurance Co. v Benjamin, 328 U.S. 408, 429–30 (1936). See Cohen, supra note 104, at 529 (stating: “Unfortunately, the Prudential case is also the Supreme Court’s last treatment of the subject [of congressional consent]”). In Prudential, the Court held that the McCarran-Ferguson Act, which limited the applicability of anti-trust laws on the insurance business and provided that “silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States,” authorized a discriminatory South Carolina law that imposed a 3% tax on profits made by out-of-state businesses. See 408 U.S. at 429–30. The Court later struck down the discriminatory laws authorized in Prudential on Equal Protection grounds in 1985, in Metropolitan Life. See 470 U.S. at 883; Cohen, supra note 108, at 10–11.
110 It was actually in this context that the Court first articulated the concept of Congress’s authority to override the dormant Commerce Clause. See Rahrer, 140 U.S. at 562 (stating: “No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate character shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.”); Cohen, supra note 104, at 525–26.
111 See 135 U.S. at 124–25. For a discussion of this case in the context of national prohibition, see supra notes 22–34 and accompanying text.
112 See Wilson Act, ch. 728, 26 Stat. 313 (Aug. 8, 1890) (current version at 27 U.S.C. § 121 (1994)). For the relevant text of the Act, see supra note 25.
113 140 U.S. at 562, 565.
114 See Cohen, supra note 104, at 526–27; Dowling & Hubbard, supra note 103, at 106–12.
115 Webb-Kenyon Act, ch. 90, 37 Stat. 699 (1913) (current version at 27 U.S.C. § 122 (1994)).
116 242 U.S. at 332; Dowling & Hubbard, supra note 103, at 113 & n.27. In his 1920 article discussing the implications of the Court’s holding in Clark, Professor Dowling referred to “the doctrine of divesting an article of its interstate character.” Dowling & Hubbard, supra note 103, at 101. He stated:
Congress has the power under the commerce clause, [according to Clark], to divest intoxicating liquor of its interstate character—to strip it of that something which gives it immunity from the operation of state laws—and the liquor, after being thus divested, is subject to state laws in the same way that it would be if it were a domestic article and not one of interstate commerce. This, in short, is the doctrine of divesting an article of its interstate character.
Id.
Twenty-seven years later, however, in his seminal article Interstate Commerce and State Power—Revised Version, Professor Dowling called this doctrine the name by which we know it today: “[T]he doctrine of congressional consent to state action.” See Dowling, supra note 103, at 547.
117 See Clark, 242 U.S. at 332; Dowling & Hubbard, supra note 103, at 113–16.
118 See Gunther & Sullivan, supra note 87, at 346 n.1.
119 See U.S. Const. amend. XXI, § 1 (repealing U.S. Const. amend. XVIII).
120 Id. § 2.
121 See Tribe, supra note 35, at 218–19.
122 See infra notes 123–24 and accompanying text.
123 76 Cong. Rec. 4143 (1933) (statement of Sen. Blaine).
124 Id. at 4141.
125 See Tribe, supra note 6, § 6–27, at 1167; Note, supra note 20, at 1146–49.
126 See infra notes 133–39 and accompanying text.
127 See Note, supra note 20, at 1148.
128 See id. See generally, e.g., Comment, The Twenty-first Amendment Versus the Interstate Commerce Clause, 55 Yale L. J. 815 (1946) (for a survey of those arguing for this historical interpretation). To support the proposition that the language of the Amendment is vague and overbroad, see Tribe, supra note 35, at 219 (stating: “This wasn’t the first time an amendment’s text missed its mark. But this miss is a doozy. The text actually forbids the private conduct it identifies, rather than conferring power on the States as such.”). Professor Tribe gives us a colorful example of the Amendment’s poor draftsmanship, using reducto ad absurdum:
The upshot is that there are two ways, and two ways only, in which an ordinary private citizen, acting under her own steam and under no color of law, can violate the United States Constitution. One is to enslave somebody, a suitably hellish act. The other is to bring a bottle of beer, wine, or bourbon into a State in violation of its beverage control laws—an act that might have been thought juvenile, and perhaps even lawless, but unconstitutional?
Id. at 220.
129 See Note, supra note 20, at 1148.
130 See generally Joseph E. Kallenbach, Interstate Commerce in Intoxicating Liquors under the Twenty-first Amendment, 14 Temp. U. L.Q. 474, 480–82 (1940). See also Note, supra note 20, at 1148.
131 See infra notes 132–40 and accompanying text. This twenty year period spanned from the ratification of the Amendment in 1933, until the Court’s decision in Hostetter v. Idlewild Bon Voyage Liquor Corp. See generally 377 U.S. 324 (1940).
132 See Joseph Finch & Co. v. McKittrick, 305 U.S. 395, 398 (1939); Mahoney v. Joseph Triner Corp., 304 U.S. 401, 404 (1938); State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 62–64 (1936).
133 299 U.S. at 61–64.
134 See id. at 60.
135 Id. at 62.
136 See id. at 63. With regard to the Commerce Clause, Justice Brandeis wrote: “The [Twenty-first] amendment . . . abrogated the right to import free, so far as intoxicating liquors are concerned.” Id. at 62 (emphasis added). Referring to the Equal Protection Clause, he stated: “A classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth.” Id., 299 U.S. at 64.
137 Id. at 62.
138 See Joseph Finch & Co., 305 U.S. at 397–98 (upholding a Missouri statute prohibiting the importation of alcohol from Indiana, Pennsylvania, Michigan and Massachusetts); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391, 394 (1939) (upholding a Michigan statute prohibiting the sale of any beer brewed in a state which similarly discriminated against Michigan); Joseph Triner Corp., 304 U.S. at 403 (upholding a Minnesota statute that prohibited the importation of beverages containing more than 25% alcohol, unless they had been properly registered with the state patent office).
139 See Bacchus Imports Ltd. v. Dias, 468 U.S. 263, 275 (1984); Craig v. Boren, 429 U.S. 190, 205 (1976); Idlewild, 377 U.S. at 331–32.
140 377 U.S. at 333–35.
141 See id. at 331–32.
142 Id.
143 See id.
144 See id. at 329.
145 See Idlewild, 377 U.S. at 332.
146 See id.
147 See id. at 333–34.
148 See id.
149 See California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 114 (1980) (invalidating a California state wine pricing system that violated the Sherman Act); Craig, 429 U.S. at 204–09 (striking down, on Equal Protection grounds, an Oklahoma law which allowed for the sale of 3.2 beer to 18-year-old women but not men); United States v. State Tax Comm’n of Miss., 412 U.S. 363, 381 (1973) (striking down an attempt by Mississippi to prevent a U.S. military base within its borders from obtaining cheaper alcohol out-of-state).
150 See generally 468 U.S. 263 (1984). See also Tribe, supra note 6, § 6–27, at 1170 (calling Bacchus: “Perhaps the most important of the contemporary cases on the scope of the Twenty-first Amendment.”).
151 See Bacchus, 468 U.S. at 273–76.
152 See id. at 265.
153 City of Philadelphia, 437 U.S. at 624.
154 See Bacchus, 468 U.S. at 274.
155 See id. at 270–73.
156 See id. at 275.
157 See id. at 275–76.
158 Id. (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984)).
159 See Bacchus, 468 U.S. at 275–276.
160 See id. at 276.
161 See id. (internal citations omitted).
162 The terms central power, central purpose and core power are used interchangeably throughout Twenty-first Amendment jurisprudence. Compare id. (“central purpose”), with Capital Cities, 467 U.S. at 713 (“core § 2 power”), 715 (“central power”).
163 See Bacchus, 468 U.S. at 276.
164 See id. (stating: “Here, the State does not seek to justify its tax on the ground that it was designed to promote temperance or to carry out any other purpose of the Twenty-first Amendment . . . . Consequently, . . . we reject the State’s belated claim on the Amendment”).
165 See id. at 274–76; see also Midcal Aluminum, 445 U.S. at 112–14 (holding that a California wine pricing scheme was not protected by the Twenty-first Amendment); Capital Cities, 467 U.S. at 716 (holding that an Oklahoma statute prohibiting the advertising of alcoholic beverages on cable television was not protected by the Twenty-first Amendment).
166 See generally Midcal Aluminum, 445 U.S. at 97; Capital Cities, 467 U.S. at 691.
167 See Midcal Aluminum, 445 U.S. at 112–14.
168 See id. at 109.
169 See id. at 103, 114.
170 See id. at 112.
171 See id. (quoting Rice v. Alcoholic Beverage Control App. Bd., 579 P.2d 476, 490 (1978)).
172 See Midcal Aluminum, 445 U.S. at 112 (citing Rice, 579 P.2d at 490).
173 See id. at 113–14.
174 See Capital Cities, 467 U.S. at 716.
175 See id. at 705.
176 See id. at 711–12.
177 See id. at 715–16.
178 See id.
179 Capital Cities, 467 U.S. at 715.
180 See id. at 715–16 (stating that “the application of Oklahoma’s ban . . . engages only indirectly the central power reserved by § 2 of the Twenty-first Amendment”).
181 See id. at 716.
182 See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) (invalidating Rhode Island prohibition on advertisement of liquor prices that violated the First Amendment freedom of speech); Healy v. Beer Institute, 491 U.S. 324, 341–43 (1989) (invalidating a Connecticut Liquor Control Act that violated the Commerce Clause); 324 Liquor Corp. v. Duffy, 479 U.S. 335, 351–52 (1987) (invalidating a New York statutory scheme regulating liquor prices that conflicted with federal antitrust law); Brown-Forman Distillers Corp. v. New York Liquor Auth., 476 U.S. 573, 582–83 (1986) (invalidating parts of New York Alcohol Beverage Control Law that were in violation of the Commerce Clause).
183 See generally Rhode Island, 517 U.S. 484; Healy, 491 U.S. 324; Duffy, 479 U.S. 335; Brown-Forman, 476 U.S. 573.
184 There has occasionally been language in the Court’s dicta broadly defining this core power. For example, in Capital Cities, the Court broadly defined the “central power” of § 2 as “regulating the times, places, and manner under which liquor may be imported and sold,” and as “control over whether to permit importation or sale of liquor and how to structure the distribution system.” See 467 U.S. at 715–16. Yet that definition simply does not square with the Court’s own analysis and results. Such a broad definition of the amendment’s core powers would have required the Court to have upheld the discriminatory state laws struck down in Idlewild, Midcal Aluminum and Bacchus. See Bacchus, 468 U.S. at 265, 275–77 (striking down a discriminatory Hawaiian liquor tax); Midcal Aluminum, 445 U.S. at 109, 14 (striking down a California comprehensive wine-pricing scheme); Idlewild, 377 U.S. at 324, 331–32 (striking down a New York prohibition on the sale of alcohol at J.F.K. Airport).
In fact, it would seem that the only cases that would not contradict this broad definition of core powers are those cases where the regulation struck down did not violate the Commerce Clause but some other federal law such as the First Amendment. See Rhode Island, 517 U.S. at 516 (invalidating Rhode Island law that violated the First Amendment’s freedom of speech); Capital Cities, 467 U.S. at 715 (invalidating Oklahoma law that was pre-empted by FCC regulation); Craig, 429 U.S. at 204–05 (invalidating Oklahoma law that violated the Fourteenth Amendment’s Equal Protection Clause).
185 See generally Bacchus, 468 U.S. 263; Capital Cities, 467 U.S. 691; Midcal Aluminum, 445 U.S. at 109–14; Idlewild, 377 U.S. 324.
186 See generally Idlewild, 377 U.S. 324; Bacchus, 468 U.S. 263.
187 See Dickerson v. Bailey, 87 F. Supp. 2d 691, 710 (S.D. Tex. 2000) (striking down discriminatory Texas direct shipment law because law failed to promote temperance); Bridenbaugh v. O’Bannon, 78 F. Supp. 2d 828, 837 (N.D. Ind. 1999) (striking down Indiana direct shipment law because law failed to promote temperance); Pete’s Brewing Co. v. Whitehead, 19 F. Supp. 2d 1004, 1017–20 (W.D. Mo. 1998) (striking down Missouri labeling requirement on beer containers because law failed to promote temperance); Quality Brands v. Barry, 715 F. Supp. 1138, 1138, 1143 (D.D.C. 1989) (striking down a discriminatory District of Columbia law requiring alcoholic beverage licensees to store beverages within the District because law failed to promote temperance), aff’d, 901 F.2d 1130 (D.C. Cir. 1990); Loretto Winery Ltd. v. Gazzara, 601 F. Supp. 850, 852, 861 (S.D.N.Y. 1985) (striking down discriminatory New York law that permitted wine coolers made from local grapes to be sold in retail grocery stores because law failed to promote temperance); accord Cooper v. McBeath, 11 F.3d 547, 555 (5th Cir. 1994) (striking down discriminatory Texas residency requirement on alcohol permit holders because law failed to promote a “core concern” of the Twenty-first Amendment), cert. denied, 512 U.S. 1205 (1994); Kendall-Jackson Winery, Ltd. v. Branson, 82 F. Supp. 2d 844, 865–66 (N.D. Ill. 2000) (holding that plaintiff winery showed “strong likelihood” of succeeding on claim that provisions of Illinois Fair Dealing Act limiting out-of-state liquor supplier’s ability to terminate contracts with in-state distributor were unconstitutional because provisions failed to promote a “central purpose” of the Twenty-first Amendment). But see Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d 193, 196, 203–04 (D.C. Cir. 1996) (upholding the same District of Columbia Storage Act that was struck down in Quality Brands).
188 Loretto Winery, 601 F. Supp. at 861.
189 Pete’s Brewing Co., 19 F. Supp. 2d at 1020.
190 See Capital Cities, 467 U.S. at 715–16; Midcal Aluminum, 445 U.S. at 113–14.
191 See supra notes 144–48 and accompanying text.
192 See Midcal Aluminum, 445 U.S. at 102 (stating that “the threshold question is whether California’s plan for wine pricing violates [federal law]”); accord Bacchus, 468 U.S. at 273 (finding as a threshold matter that the protectionist Hawaiian liquor tax violated the dormant Commerce Clause); Capital Cities, 467 U.S. at 705 (finding as a threshold matter that the Oklahoma advertising ban on wine commercials conflicted with federal law).
193 See supra notes 145 & 156 and accompanying text.
194 See supra notes 159–65 and accompanying text.
195 See supra notes 159–65 and accompanying text.
196 See supra notes 167–73 and accompanying text.
197 See S. 577, 106th Cong. (1999) (substantially similar to H.R. 2031, 106th Cong. (1999)).
198 See id.; H.R. Rep. No. 106–265, at 3 (1999). For a definition and examples of direct shipment legislation, see supra notes 50–55 and accompanying text.
199 See H.R. Rep. No. 106–265, at 5; 145 Cong. Rec. H6,859–60 (daily ed. Aug. 3, 1999) (letters from assorted state attorneys general, stating that without the proposed legislation, they are unable to enforce the direct shipment laws).
200 This is to say that if the direct shipment laws were found to be unconstitutional, the issue would shift to whether the Enforcement Act authorized the federal courts to enforce otherwise invalid laws. See infra notes 243–56 and accompanying text.
201 For a recent Note that deals only with the constitutionality of direct shipment laws, see generally Shanker, supra note 44, at 377 (arguing that direct shipment laws are the kind of protectionist legislation affecting interstate commerce that are per se unconstitutional).
202 See supra note 192 and accompanying text; see also supra notes 144, 155, 175 and accompanying text.
203 See supra notes 95–102 and accompanying text.
204 See H.R. Rep. No. 106–265, at 18; Interstate Alcohol Sales, supra note 60, at 21.
205 See Interstate Alcohol Sales, supra note 60, at 20 (stating that: “for the majority of wineries . . . direct shipping is the only viable means to fill customer orders”).
206 See Shanker, supra note 44, at 366–67. The one exception here would be the wine consumers who frequently read about but are unable to buy many hard-to-find labels. Consumers, however, are not an effective check against discriminatory legislation, since they are plagued by what some commentors describe as organizational disadvantages. See Tushnet, supra note 93, at 133; Shanker, supra note 44, at 367.
207 See Freedman & Emshwiller, supra note 59, at A1; Knap, supra note 47, at C1.
208 See Shanker, supra note 44, at 362; Freedman & Emshwiller, supra note 59, at A1; Knap, supra note 47, at C1.
209See Shanker, supra note 44, at 363; Freedman & Emshwiller, supra note 59, at A1; Knap, supra note 47, at C1.
210 See supra notes 95–102 and accompanying text.
211 See Maine v. Taylor, 477 U.S. 131, 138 (1986) (quoting Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)); see also supra notes 98–102 and accompanying text.
212 See Shanker, supra note 44, at 357–58.
213 See H.R. Rep. No. 106–265, at 18–19 (1999).
214 See id. at 18.
215 See In Vino Veritas: Suspend the Constitution?, Wall St. J., Aug. 12, 1999, available in 1999 WL-WSJ 5464288.
216 See H.R. Rep. No. 106–265 (citing a letter from Karolyn V. Nunnallee, MADD National President, to Senator Diane Feinstein (May 13, 1999)).
217 See Shanker, supra note 44, at 358.
218 See Internet Tax Freedom Act, 14 U.S.C.A. § 151 (1999).
219 See H.R. Rep. No. 106–265, at 19.
220 See Shanker, supra note 44, at 358–59. Indeed, in states where mail-order sale of alcohol is allowed this is precisely what is done.
221 See id.
222 See id. For an example of a similar state law, see N.H. Rev. Stat. Ann. § 178:14-a (Supp. 1999) (stating: “[Direct] shippers shall file invoices for each shipment with the liquor commission . . . , and shall pay a fee of 8 percent of the price of the product”).
223 See Clint Bolick, Wine Wars: Lift the Ban on Out-of-State Sales, Wall St. J., Feb. 7, 2000, at A39, available in 2000 WL-WSJ 3016914 (stating: “Trade associations representing wineries have agreed to submit to state licensing and tax-collection requirements. States are actually foregoing tax revenues they could be receiving by permitting direct wine shipments.”).
224 See supra notes 156–59, 176–81 and accompanying text.
225 For a discussion of the Supreme Court’s current analysis of the scope of the core powers of the Twenty-first Amendment, see supra, notes 162–96 and accompanying text.
226 See H.R. Rep. No. 106–265, at 18–19 (1999); see also Shanker, supra note 44, at 358–59.
227 See H.R. Rep. No. 106–265, at 18–19.
228 See id. at 18–19 & n.4 (citing a letter from Manuel R Espinoza, Chief Deputy Dir. of Cal. Dep’t of Alcohol Beverage Control, to Representatives Mike Thompson and George Radanovich).
229 See Shanker, supra note 44, at 358–59.
230 See, e.g., Bolick, supra note 223, at A39.
231 The fact that the legislation is supported, funded, and frequently drafted by liquor wholesalers and retailers goes a long way to prove this point. See supra notes 207–09 and accompanying text.
232 See Bacchus Imports Ltd. v. Dias, 468 U.S. 263, 276 (1984).
233 See supra note 184 and accompanying text.
234 See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 713 (1984) (language indicating that the regulation of “the sale or use of liquor within [state] borders” could fall within the Amendment’s core power); see also Bacchus, 468 U.S. at 276–77 (language indicating that “laws enacted to combat the perceived evils of an unrestricted traffic in liquor” could fall within the Amendment’s core power).
235 See supra note 184.
236 For examples of cases where the court stuck down laws which regulated the sale of alcohol but failed to promote temperance, see Bacchus, 468 U.S. at 276 (striking down a Hawaiian excise tax that restricted the sale of alcohol, and was not designed to promote temperance); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 113–14 (striking down California wine pricing scheme that regulated the sale of alcohol, but was not designed to promote temperance).
237 See supra note 184.
238 See supra note 190 and accompanying text.
239 See generally Kenneth D. Bassinger, Note, Dormant Commerce Clause Limits on State Regulation of the Internet: the Transportation Analogy, 32 Ga. L. Rev. 889, 925–26 (1998); Charles R. Topping, Note, The Surf Is Up, But Who Is on the Beach? Who Should Regulate Commerce on the Internet?, 13 Notre Dame J.L. Ethics & Pub. Pol’y 179, 192–94 (1999).
240 See Bassinger, supra note 239, at 926.
241 See supra notes 162–96 and accompanying text.
242 See supra notes 162–96 and accompanying text.
243 See supra notes 103–18 and accompanying text.
244 It is relatively common for states to try and defend against dormant Commerce Clause attacks by arguing congressional consent, especially where there is a federal statute which appears to endorse the discriminatory state laws. See Taylor, 477 U.S. at 138; South Cent. Timber Development v. Wunnicke, 467 U.S. 82, 88 (1984).
245 See South Cent. Timber, 467 U.S. at 91 (stating that “for a state regulation to removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear”); see also supra notes 105–07 and accompanying text.
246 See S. 577 (substantially similar to H.R. 2031); see also South Cent. Timber, 467 U.S. at 90 (stating that “on those occasions in which consent has been found, congressional intent and policy to insulate state legislation from Commerce Clause attack have been ‘expressly stated’” (quoting Sporhase v. Nebraska ex rel. Douglas, 548 U.S. 941, 960 (1982))).
247 See South Cent. Timber, 467 U.S. at 90 (quoting United States v. Public Utilities Comm’n of California, 345 U.S. 295, 304 (1953)); see also supra notes 16–81 and accompanying text for a discussion of the legislative history of the Enforcement Act.
248 See South Cent. Timber, 467 U.S. at 92.
249 See Taylor, 477 U.S. at 139 (declining to find congressional consent to a discriminatory Maine ban on out-of-state bait-fish, despite portions of the 1981 Amendments to the Lacy Act that clearly provided for federal enforcement of state wildlife laws); South Cent. Timber, 467 U.S. at 92–93 (declining to find congressional consent for a discriminatory Alaskan local processing requirement even though Congress had “consistently endors[ed] primary-manufacture requirements on timber taken from federal land”); Sporhase, 458 U.S. at 959–60 (declining to find congressional authorization for state-imposed burdens on interstate commerce regarding ground water, despite thirty-seven federal statutes that demonstrated Congress’ deference to state water law).
250 See U.S. Const. amend. XXI; accord Webb-Kenyon Act, ch. 90, 37 Stat. 699 (1913) (current version at 27 U.S.C. § 122 (1994)); see also supra notes 64–65 and accompanying text.
251 See U.S. Const. amend. XXI; accord Webb-Kenyon Act, ch. 90, 37 Stat. 699. The original Webb-Kenyon Act, entitled: “An Act divesting intoxicating liquors of their interstate character in certain cases,” is a textbook example of a statute intended as a congressional authorization of a violation of the dormant Commerce Clause. See Dowling & Hubbard, supra note 103, at 100–01 (crediting the Webb-Kenyon Act as interpreted by the case Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311 (1917), as having created the doctrine of congressional consent). By passing the Webb-Kenyon Act, Congress clearly intended to authorize states to prohibit the importation and transportation of alcoholic beverages within their borders without being restricted by the dormant Commerce Clause. See Cohen, supra note 104, at 523, 526–27. Congress was less explicit, however, regarding their intentions behind the Twenty-first Amendment. See supra notes 119–26 and accompanying text.
252 See supra notes 139–96 and accompanying text.
253 See supra notes 139–96 and accompanying text.
254 See Taylor, 477 U.S. at 139; Cohen, supra note 104, at 537.
255 One can only assume that if direct shipment laws were found to be unconstitutional, they would be no more enforceable by the federal district courts than by the state courts.
256 Under Bacchus and its progeny, any state alcohol regulation realistically designed to promote temperance would appear to be constitutionally enforceable. See supra notes 154–90.
257 See supra notes 50–55 and accompanying text.
258 See supra notes 75–81 and accompanying text.
259 See Gunther & Sullivan, supra note 87, at 274; see also supra note 89 and accompanying text.
260 See Gunther & Sullivan, supra note 87, at 275; see also supra note 90 and accompanying text.
261 See Gunther & Sullivan, supra note 87, at 275; see also supra note 91 and accompanying text.
262 See supra notes 143–44 and accompanying text.
263 See Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984) (striking down discriminatory Hawaiian liquor tax that failed to promote temperance); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 715–16 (1984) (striking down Oklahoma ban on wine advertisements that failed to realistically promote temperance); California Retail Liquor Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 113–14 (1980) (striking down a discriminatory California wine-pricing scheme that failed to realistically promote temperance).
264 See supra notes 224–32 and accompanying text.